File and serve order

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Hello, this is my first post. I hope I am in the right place. I have sporadically had some representation, but can't keep that up financially and will have to do some things myself.

We have recieved trial directions (FCCA), including very specific dates for filing and serving trial affidavits, and a further date for the filing of a case outline (including a list of the documents I intend to rely on). I have had everything in on time. The other party however is late filing anything - so far they are over a week late.

The order basically says that if the file and serve dates are not complied with the party who has not complied shall not be entitled to rely on any documents filed thereafter. My experience of the FCCA however, suggests that the other party is likely to get away with this - they seem to be very tolerant of the other party's failure to diligently prosecute the matter.

The other party has failed to show up to a hearing, and had things in late all along - the other party has even deliberately contravened interim parenting orders (I chose not to lodge a contravention application). This other party is fully represented with a solicitor and barrister at every mention and hearing - even at mediation.

Is there anything I can do about this?

It seems contemptuous behaviour at the very least to strategically contravene a file and serve order. I imagine they will have to seek leave of the court to have the material admitted out-of-time - do you think this is likely to be granted?!

It doesn't seem fair that the other party has all my material and now has the benefit of crafting a response to it - even though the other party is the applicant! We were both supposed to file and serve on the same day. Any ideas? Advice? Suggestions?

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Unfortunately this problem occurs far too frequently. Some lawyers use it to gain a tactical advantage by reading the other parties material and some others are just so badly organized it becomes a matter of normalcy for them to file late. It may also be that they are waiting on material from their client.

If the material is exceptionally late being served you could ask the Judge to disallow it on the basis you haven't had time to digest it. Unless it is seriously late this is unlikely particularly for a final hearing.

Perhaps too late for you now is a process of asking the Judge or their Associate to have the material 'tabbed' or held. This means the material is filed normally and then goes to the Associate who holds it until the other side's material is received and then allows the release of all the material. This way both parties get the other side's material at the same time.

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Thanks for your response Conan. It is very frustrating isn't it! I know there is a paragraph in the orders that states "no party shall be entitled to rely on" anything that is filed late "without leave of the court first had and obtained".

I suspect that this kind of "leave" is readily granted based on my experience with the process thus far. It just makes a mockery of the whole system. It's annoying that if I file a contempt application it would only serve to make me look petty - rather than the other party being held to account for their deliberate disregard for court orders and 'failure to diligently prosecute' their case. So far, they are five weeks late with no sign of anything filed on comcourts.

Thanks for the tip re: requesting that the associate "tab" my material. I will definitely be requesting this if any further material needs to be filed between now and trial.

I guess one of the things I am learning is to try to keep my eye on the bigger picture and to try to overcome my penchant for pedantry and 'sweating the small stuff'. Easier said than done sometimes!

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Marvin said

Thanks for the tip re: requesting that the associate "tab" my material. I will definitely be requesting this if any further material needs to be filed between now and trial.
From “Post #52,253”, March 18th 2015, 9:03 PM

I have not heard of this process. It doesn't make much sense for two reasons.

1. When you file in the Portal which is where you should be filing the other parties who are adjoined to the matter will get an email advice and can get the material simply by downloading.

2. When you file documents at the registry and they are stamped the court only gets one copy. The responsibility is yours to serve the other copies and file the appropriate service documents.

The court will probably give every opportunity to the other side to file affidavits. If they are filed on the day they can still be admitted if there is something new to say. There can be a lot of negotiation around that. I would not want to file a case outline too late as that would disadvantage my case significantly. It is the key document that sets out the issues and the precedent you propose to use.

Executive Secretary - Shared Parenting Council of Australia

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